Creates the New York City department of housing preservation and development homeowners improvement trust fund and the HPD homeowner standard warranty.
STATE OF NEW YORK
________________________________________________________________________
7865
IN SENATE
June 16, 2014
___________
Introduced by Sen. SANDERS -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the private housing finance law, in relation to creating
the New York City department of housing preservation and development
homeowners improvement trust fund and the HPD homeowner standard
warranty
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The private housing finance law is amended by adding a new
2 article 28 to read as follows:
3 ARTICLE XXVIII
4 NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND
5 DEVELOPMENT HOMEOWNERS IMPROVEMENT TRUST FUND
6 Section 1233. Definitions.
7 1234. New York City department of housing preservation and
8 development homeowners improvement trust fund.
9 1235. Written warranty; contents.
10 1236. Powers of the commissioner.
11 1237. Resolution of disputes regarding HPD projects.
12 1238. Penalties for violation of this article.
13 § 1233. Definitions. For the purposes of this article the following
14 terms shall have the following meanings:
15 1. "Business entity" means a corporation, association, partnership,
16 limited liability company, limited liability partnership, or other legal
17 entity.
18 2. "Delivered condition" means the physical condition of the home
19 after delivery and installation at the home site has been completed.
20 3. "Department" means the New York State Community Homes & Renewal
21 program.
22 4. "Fund" means the New York City department of housing preservation
23 and development homeowners improvement trust fund created pursuant to
24 the provisions of section twelve hundred thirty-four of this article.
25 5. "Sponsor" means any person or business entity, including, but not
26 limited to, a sponsor, developer, mortgagor, applicant, or general
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15191-03-4
S. 7865 2
1 contractor as defined in section 1-16, 29-01, 30-01, 34-01, and 35-01 of
2 title twenty-eight of the rules of the city of New York who develops a
3 home through an HPD project for sale to a buyer.
4 6. "HPD project" means any construction of rehabilitation of any resi-
5 dential dwelling, in whole or in part, through the programs set forth in
6 chapters twenty-nine, thirty, thirty-four and thirty-five of title twen-
7 ty-eight of the rules of the city of New York.
8 7. "Commissioner" means the commissioner of the New York State Commu-
9 nity Homes & Renewal.
10 8. "Service" means the construction, rehabilitation, modification,
11 alteration, or repair of an HPD project.
12 9. "State administrative agency" or "SAA" means the New York State
13 Community Homes & Renewal.
14 10. "Building code" means the uniform fire prevention and building
15 code promulgated under section three hundred seventy-seven of the execu-
16 tive law, local building code standards approved by the uniform fire
17 prevention and building code council under section three hundred seven-
18 ty-nine of the executive law, and the building code of the city of New
19 York, as defined in title twenty-seven of the administrative code of the
20 city of New York.
21 11. "Constructed in a skillful manner" means that workmanship and
22 materials meet or exceed the specific standards of the applicable build-
23 ing code. When the applicable building code does not provide a relevant
24 specific standard, such term means that workmanship and materials meet
25 or exceed the standards of locally accepted building practices.
26 12. "Material defect" means actual physical damage to the following
27 load-bearing portions of the home caused by failure of such load-bearing
28 portions which affects their load-bearing functions to the extent that
29 the home becomes unsafe, unsanitary or otherwise unliveable: foundation
30 systems and footings, beams, girders, lintels, columns, walls and parti-
31 tions, floor systems, and roof framing systems.
32 13. "New home" or "home" means any single family house or for-sale
33 unit in a multi-unit residential structure constructed or rehabilitated
34 through an HPD project in which title to the individual units is trans-
35 ferred to owners under a condominium, cooperative, or individual owner-
36 ship regime. Such terms do not include dwellings constructed solely for
37 lease.
38 14. "Owner" means the first person to whom the home is sold and,
39 during the unexpired portion of the warranty period, each successor in
40 title to the home and any mortgagee in possession. Owner does not
41 include the builder of the home or any firm under common control of the
42 builder.
43 15. "Plumbing, electrical, heating, cooling and ventilation systems"
44 shall mean:
45 a. in the case of plumbing systems: gas supply lines and fittings;
46 water supply, waste and vent pipes and their fittings; septic tanks and
47 their drain fields; water, gas and sewer service piping, and their
48 extensions to the tie-in of a public utility connection, or on-site well
49 and sewage disposal system;
50 b. in the case of electrical systems: all wiring, electrical boxes,
51 switches, outlets and connections up to the public utility connection;
52 and
53 c. in the case of heating, cooling and ventilation systems: all duct
54 work, steam, water and refrigerant lines, registers, convectors, radi-
55 ation elements and dampers.
S. 7865 3
1 16. "Warranty date" means the date of the passing of title to the
2 first owner for occupancy by such owner or such owner's family as a
3 residence, or the date of first occupancy of the home as a residence,
4 whichever first occurs.
5 17. "HPD owner warranty" means the warranty required to be provided to
6 each owner of a home.
7 § 1234. New York City department of housing preservation and develop-
8 ment homeowners improvement trust fund. 1. A New York City department of
9 housing preservation and development homeowners improvement trust fund
10 (hereinafter, "the fund") is hereby established to provide for the
11 payment of approved repairs to aggrieved homeowners who are victims of
12 substandard housing built by a sponsor on an HPD project. The fund shall
13 be administered by the commissioner of New York State Community Homes &
14 Renewal.
15 2. a. A sponsor of an HPD project shall be required to participate in
16 the fund unless a sponsor provides a bond or otherwise meets the warran-
17 ties set forth in section twelve hundred thirty-five of this article.
18 b. Any sponsor who is granted or receives the right to develop an HPD
19 project must participate in the fund by submitting to the commissioner a
20 check in the amount of not less than five percent of the total value of
21 the HPD project before an HPD project may be awarded to a sponsor.
22 c. The commissioner may, from time to time, amend this section to
23 require such additional contributions by participants in the fund as the
24 commissioner determines to be necessary to maintain an amount in the
25 fund which is adequate to fulfill its purposes and to counteract
26 depletion of the fund resulting from payments made out of the fund
27 pursuant to subdivision 3 of this section.
28 d. Fund participants may discontinue their participation in the fund
29 at any time by filing a bond in accordance with regulations promulgated
30 by the commissioner and in effect.
31 e. The funds will be returned to the sponsor as follows: (1) fifty
32 percent returned after thirty months after completion of the project so
33 long as there are no unresolved warranty issues; and (2) fifty percent
34 returned after sixty months after completion of the project so long as
35 there are no unresolved warranty issues. Under no circumstances shall
36 funds be returned if there are any outstanding unresolved warranty
37 issues.
38 f. Participation in the fund does not relieve a sponsor of any obli-
39 gation to pay awards or fines imposed by the department or judgments or
40 arbitration awards rendered against a sponsor by a court of competent
41 jurisdiction.
42 3. a. The commissioner may require that disbursements be made from the
43 fund to pay outstanding awards to an owner, on behalf of an owner when:
44 (1) the department has conducted an administrative hearing that
45 results in a decision that a sponsor is in violation of a law, ordinance
46 or regulation enforced by the department or the HPD owner warranty;
47 (2) the sponsor is ordered by the department to pay an award to an
48 owner;
49 (3) the sponsor has failed to pay such award to an owner within thirty
50 days of the date of the department's order; and
51 (4) the sponsor has conducted an administrative hearing that results
52 in a decision that a sponsor has not remedied material defects in
53 construction or rehabilitation of an HPD project and is in violation of
54 the HPD owner warranty.
55 b. Disbursements from the fund will be made at the discretion of the
56 commissioner or his or her designee.
S. 7865 4
1 c. The commissioner or his or her designee may order that partial
2 payment of awards be made from the fund.
3 d. Nothing contained in this subdivision shall be construed to:
4 (1) limit the rights and remedies of any party, including the depart-
5 ment, to pursue a cause of action against a sponsor who is a participant
6 in the fund;
7 (2) create a right of any person to a portion of any of the fund,
8 except in the case of an award duly made by the commissioner pursuant to
9 the provisions herein; or
10 (3) provide for the payment of awards or judgments rendered against
11 fund participants in personal injury actions.
12 4. The commissioner shall, by January thirty-first of each year, cause
13 an accounting to be made of all of the fund's activities during the
14 preceding calendar year.
15 § 1235. Written warranty; contents. 1. The HPD owner warranty shall be
16 provided to the owner that accords with the provisions of article thir-
17 ty-six-B of the general business law, including the following:
18 a. One year from and after the warranty date the home will be free
19 from defects due to a failure to have been constructed in a skillful
20 manner;
21 b. Two years from and after the warranty date the plumbing, elec-
22 trical, heating, cooling and ventilation systems of the home will be
23 free from defects due to a failure by the builder to have installed such
24 systems in a skillful manner; and
25 c. Six years from and after the warranty date the home will be free
26 from material defects, including, but not limited to, any construction
27 that is not in compliance with the building code or the zoning resol-
28 ution of the city of New York.
29 2. a. The sponsor shall take appropriate corrective action within
30 sixty days of receipt of written notification at the site of the home in
31 instances of substantial defects in materials or workmanship, which
32 become evident within one year from the date of the delivery of the home
33 to the owner, provided the owner or his transferee gives written notice
34 of such defects to the sponsor at their business address not later than
35 one year and ten days after date of delivery.
36 b. The sponsor will, as a minimum remedy, make repairs or indemnify
37 the owner for the actual cost of repairing any rust damage covered by
38 the warranty.
39 c. The sponsor will honor all valid claims under the warranty regard-
40 less of their number.
41 d. Nothing contained in this section shall be deemed to preclude a
42 sponsor from entering into a contract requiring a financially solvent
43 contractor who worked on the home to be initially responsible for the
44 cost of any corrective action as a result of the negligence of the
45 contractor.
46 3. a. The warranty under this article shall be in addition to and not
47 in derogation of all other rights and privileges which such owner may
48 have under any other law or instrument. Waiver of any rights by the
49 owner under this article shall be deemed contrary to public policy and
50 shall be unenforceable and void.
51 b. The provisions of this article shall preempt any local law incon-
52 sistent with the provisions of this article. This article shall not
53 preempt any builder subject to its provisions from complying with any
54 local law with respect to the regulation of sponsors except as expressly
55 provided herein.
S. 7865 5
1 c. Nothing in this article shall be construed to repeal, invalidate,
2 supersede or restrict any right, liability or remedy provided by any
3 other statute of the state, except where such construction would, as a
4 matter of law, be unreasonable.
5 § 1236. Powers of the commissioner. The commissioner shall have the
6 following powers and duties with respect to HPD projects:
7 1. To create and maintain a registry accessible to the public which
8 shall include, but not be limited to the following information:
9 a. a listing of all pre-approved, pre-qualified, or approved sponsors
10 for HPD projects and all sponsors awarded HPD projects; and
11 b. records of all violations issued, disciplinary action taken and
12 penalties paid and levied pursuant to this article;
13 2. To retain records and all application materials submitted to it;
14 3. To receive complaints, conduct investigations and establish proce-
15 dures for the resolution of disputes relating to the construction of HPD
16 projects and to resolve such complaints and disputes pursuant to section
17 twelve hundred thirty-four of this article;
18 4. To promulgate rules and regulations relating to the provisions of
19 this article;
20 5. To conduct adjudicatory hearings, pursuant to the state administra-
21 tive procedure act to resolve violations of this article and the rules
22 and regulations promulgated thereunder;
23 6. To seek injunctive relief in the supreme court in the county where
24 the complainant resides; and
25 7. To promulgate rules and regulations to require bonding, minimum
26 capital requirements or other reasonable methods to ensure that sponsors
27 are financially responsible to fully comply with this article and have
28 the financial resources to meet their warranty, contractual and other
29 obligations required under this section. In connection therewith, the
30 commissioner may require the posting of surety bonds to ensure the
31 satisfactory completion of HPD projects.
32 § 1237. Resolution of disputes regarding HPD projects. 1. Any owner
33 may file a complaint with the commissioner as a state administrative
34 agency seeking resolution of an allegation that a substantial defect
35 exists in the delivered condition, installation, service or construction
36 of an HPD project. The commissioner shall promulgate forms for such
37 complaints and such forms shall also be available on the department's
38 web-site. For the purpose of this article, a substantial defect shall be
39 a defect or a number of defects or other conditions which collectively
40 can reasonably be expected to cost one thousand dollars or more to cure.
41 2. Complaints filed with the commissioner relating to the delivered
42 condition or construction of an HPD project shall be made within one
43 year and ten days after the date of the delivery of title, or of a
44 certificate of occupancy, or the expiration of any applicable provision
45 of a contract or warranty, whichever is later.
46 3. a. Upon the department's determination that a complaint, on its
47 face, alleges a substantial defect in the delivered condition or
48 construction of an HPD project, the department shall notify the owner
49 and sponsor.
50 b. Initially, the department may attempt to informally resolve the
51 complaint. If informal resolution of the complaint is unsuccessful, the
52 department shall resolve such complaints and disputes by administrative
53 hearing, pursuant to the state administrative procedure act.
54 c. The decision shall provide compensation to the aggrieved party in
55 an amount which shall include, but not be limited to:
S. 7865 6
1 (1) Filing and recording fees, inspection fees and other required
2 costs that the aggrieved party would not have incurred had the home met
3 applicable standards; and
4 (2) The cost of conforming repairs or replacements.
5 d. The department may apportion liability between two or more parties
6 or business entities where appropriate.
7 e. The decision resolving the complaint shall be in writing and shall
8 provide the reason therefor, a copy of the decision shall be provided to
9 all interested parties, including the sponsor and owner.
10 f. Any party may seek judicial review of the administrative determi-
11 nation pursuant to article seventy-eight of the civil practice law and
12 rules.
13 § 1238. Penalties for violation of this article. Any person or busi-
14 ness entity found guilty, after a hearing, of a violation of this arti-
15 cle, may be required to pay a civil penalty of not more than ten thou-
16 sand dollars for each such violation, but not more than fifty thousand
17 dollars for more than one violation relating to each HPD project. Such
18 fine shall be collected and deposited in the fund.
19 § 2. This act shall take effect on the first of January next succeed-
20 ing the date upon which it shall have become a law.
